*90Dissenting Opinion.
Monks, J.— I dissent from both, the reasoning and the conclusion reached in the prevailing opinion.
The apportionment act of 1885, tested by the principles established in the cases of Parker v. State, 133 Ind. 178, and Denney v. State, 144 Ind. 503, where this court held the apportionment acts of 1879, 1891, 1893, and 1895 unconstitutional, is clearly and without doubt unconstitutional and void. It is not a law, and is inoperative for any purpose. It confers no rights; it imposes no duties; it affords no protection, and is the same as if it had never been passed. Johnson v. Board, etc., 140 Ind. 152, on p. 156; Strong v. Daniels, 5 Ind. 348; Sumner v. Beeler, 50 Ind. 341; Cooley Const. Lim. (6 ed.), 222; Black Const. Law, 64, section 37.
It is not the judgment of a court that renders a statute unconstitutional, but the fact that it is in conflict with some provision of the constitution. A statute, therefore, that is repugnant to any provision of the constitution is void before, as well as after it is so adjudged. The fact that no court has ever passed upon the question does not render such statute constitutional and valid. Therefore, the apportionment act of 1885 is no more valid and binding than the apportionment acts of 3891, 1893, and 1895, which have been adjudged unconstitutional by this court. This court has uniformly held, that when it clearly appears that a statute is repugnant to or in conflict with any provision of the constitution, it is the plain duty of the courts to declare it null and void. Campbell v. Dwiggins, 83 Ind. 473, 480; Parker v. State, supra, on p. 187; Denney v. State, supra.
Indeed, it is not claimed, in the prevailing opinion, that the apportionment act of 3885 is constitutional; *91but it is not held invalid for the sole reason given, that it is the only statute on that subject, and that if held invalid, the Governor may not call a special session of the general assembly, or, if he does, the general assembly may not enact a constitutional apportionment law, and anarchy may follow.
In response to a suggestion of like character, in McPherson v. Blacker, 146 U. S. 1, the court, by Chief Justice Fuller, said:
“It is argued that the subject-matte* of the controversy is not of judicial cognizance, because it is said that all questions connected with the election of a presidential elector are political in their nature; that the court has no power finally to dispose of them; and that its decision would be subject to review by political officers and agencies, as the State board of canvassers, the legislature in joint convention, and the Governor, or finally Congress * *. The question of the validity of this act, as presented to us by this record, is a judicial question, and we cannot decline the exercise of our jurisdiction upon the inadmissible suggestion that action might be taken by political agencies in disregard of the judgment of the highest tribunal of the State as revised by our own.” This doctrine was approved by the Supreme Court of New Jersey in State v. Wrightson (22 L. R. A. 548), 56 N. J. L. 126.
It' is the duty of each department of the State government to act in the discharge of all duties, upon the presumption that the other departments will properly perform all duties incumbent upon them. It is only when the action of the several departments of the State government is governed by this rule that its perpetuity and safety are assured. Any other course tends to bring confusion and anarchy. This court, therefore, should decide all questions properly pre*92sented, upon the presumption that the executive and legislative departments of the State government will not neglect any duty or fail to perform any function imposed upon them by the constitution. There is much less danger of anarchy by this, course than for this court to declare an unconstitutional law valid, or decline to pass upon the question of its constitutionality, for the reason that the other departments named might fail or refuse to perform the duties imposed by the organic law. The suggestion that either the legislative or executive department of the State government might fail or refuse to perform the duties imposed by the constitution as a reason why this court should not adjudge the apportionment act of 1885 unconstitutional, as it clearly is, or as a reason why this court should decline to pass upon that question, is certainly, in the language of Chief Justice Fuller, “inadmissible,” and should not be considered by the court; to do so is an unwarranted reflection on the co-ordinate branches of the State government.
In Parker v. State, supra, decided in December, 1892, before the meeting of the general assembly in January, 1893, this court said: “If, at the next ensuing election, the State is without a valid law, creating senatorial and representative districts under the enumeration of 1889, the responsibility must rest with the legislature, and not the judicial department of the State government.”
This same argument was also considered and answered in the apportionment cases decided by the Supreme Courts of Michigan and Wisconsin.
In Giddings v. Blacker, 93 Mich. 1 (16 L. R. A. 402), Morse, C. J., said: “We do not care to. go further, since there is a remedy in the hands of the executive and Legislature. The consequences of this decision are not for us. It is our duty to declare the law, to *93point out the invasion of the Constitution, and to forbid it.”
In State v. Cunningham, 81 Wis. 440 (15 L. R. A. 561), Pinney, J., said: “No difficulty, it is believed, need be apprehended as to the result of the decision the court has felt it to be its imperative duty to make; and our respect for the executive of the State, whose duty it is To take care that the laws are faithfully executed/ forbids any apprehension that he will fail in the least in meeting the present emergency, or to- take such measures as in his wisdom seem best to give full effect to the constitution and the laws.”
In the same case, Lyon, J., said: “Neither is the jurisdiction of the court affected, or the exercise thereof embarrassed, by the fact that this decision may leave the State without a valid legislative apportionment law, and hence without any law for the election of another legislature. The Governor may convene the present legislature, if he deems it his duty to do so, and when so convened, there can be no doubt of its power to enact a valid legislative apportionment law.”
In the Legal Tender Cases, 12 Wall. 457, Mr. Justice Strong, in delivering the opinion of the court, referred to the situation of the country when the acts were passed, and the “great business disarrangement, widespread distress and rank injustice” that would result if said acts were held invalid; but he added, “the consequences of which we have spoken, serious as they are, must be accepted if there is a clear incompatibility between the constitution and the Legal Tender Acts.”
The proposition that this court should hold an unconstitutional law valid, or refuse to pass upon the question of its validity because some other department of the government might fail or refuse to per*94form the duties imposed upon it by the organic law, is a dangerous and vicious doctrine, and is not, I think, sustained by reason, and is clearly against the great weight of the authorities.
Neither can I concur in the proposition that the people, having acted upon the apportionment act of 1885, by electing three successive general assemblies under it, that it is now too late to raise the question of its validity. The authorities cited, in support of this doctrine, have reference to actions to enforce private rights concerning property, and can have no application in a case like the one before us. This court, in Denney v. State, supra, said: “Neither do we think there was any estoppel here, as in the case of Vickery v. Board, etc., 134 Ind. 554, to which we are referred. There the party bringing suit to enjoin levy of taxes to pay for bonds issued on purchase of a toll road, had waited until he received the benefit of the bonds before asking the court to declare unconstitutional the law under which they were issued. Here, while there may be some question of private or personal benefit, yet the issue before the court is much broader. The action concerns all the people of the State in their most enlarged and sacred relations of citizenship, and government, and the case cannot be tied up with the purely private rights of any one. It is true, that an action to test the constitutionality of the law, if brought at all, should have been pressed to a final determination in the first place. * * Yet the people of the State, in their sovereign capacity, cannot, for such reasons, be estopped from asking for the determination of the validity of a law under which it is n'ow proposed they shall elect their next legislature. When the people of the State appear at this bar with such an issue, there can be no question of estoppel. *95The inquiry is one reaching to the foundations of the government.”
In Parker v. State, supra, this court held that the apportionment act of 1879 was unconstitutional, notwithstanding three successive general assemblies had been elected thereunder, and more than thirteen years had elapsed since its enactment. Yet it has only been eleven years since the apportionment act of 1885 was passed. Lapse of time, however, cannot, in a case like the one at bar, render an unconstitutional statute valid or secure from attack, or deprive the people of their right to question its validity. We think the correct doctrine was declared in State v. Wrightson, supra, on. p. 208, quoting the language of Judge Cooley: “Acquiescence for no length of time can legalise a clear usurpation of power, where the people have plainly expressed their trill in the constitution, and appointed judicial tribunals to enforce it.”
The subject of acquiescence in unconstitutional apportionment statutes, -as affecting the right of an elector to have the validity of the act determined, was considered by the Supreme Court of New Jersey in State v. Wrightson, supra, where it was claimed that a particular method of apportionment had been acquiesced in ever since the adoption of the constitution by all parts of the State government and by the people, and that therefore it was no' longer subject to question. But it was held by the court that this doctrine had no application whatever in a. case where it appeared that mandates of the constitution had not been obeyed. The court said: “The constitution contains the permanent will of the people. It is paramount to the power of the legislature, and can be revoked or altered only by the power which created it. Popular government can be maintained only by upholding the constitution at all times and on all oc*96casions as it was when it came from the hands of the people, by whose fiat it was established as the fundamental articles of government, to abide until altered by the authority which created it. To adopt the language of Chief Justice Bronson, in Oakley v. Aspinwall, 3 N. Y. 568: ‘There is always some plausible reason for the latitudinarian constructions which are resorted to for the purpose of acquiring power — some evil to be avoided, or some good to be attained by pushing the powers of the government beyond their legitimate boundary. It is by yielding to such influences that constitutions are gradually undermined, and finally overthrown. * * * One step taken by the legislature or the judiciary in enlarging the powers of the government opens the door for another, which will be sure to follow; and so the process goes on, until all respect for the fundamental law is lost, and the powers of the government are just what those in authority please to call them.’
“Within the domain of construction there is room for argument and discussion — nay, even for a diversity of opinion; but when the meaning of the constitution, interpreted by its letter and in its spirit, is ascertained, extraneous considerations are of no avail. In the process of construction, long usage and practical interpretation are entitled to great weight if the language be obscure or doubtful; but such extraneous considerations cannot be allowed ‘to abrogate the text’ or ‘fritter away its obvious sense.’
“I have already said that, on a construction of the words of the constitutional provision regulating this subject, fortified by the policy and institutions which prevailed in this State prior to the framing of the con-, stitution, and a comparison of other of its provisions, the constitutional mandate requires the election of members of the general assembly by the legal voters *97of the counties respectively, and that the division of counties into assembly districts and the distribution of the members among these districts for the purpose of electing such members is in conflict with the constitutional mandate. No one can examine the legislation on this subject from 1871 to the present time and contemplate the results without realizing the evils which have been fostered under this system. Relief from these wrongs through the ballot box cannot be assured, the majority in the legislature being elected under this system by a minority of the legal voters of the State. Precedent has been followed by retaliation, to be repeated from time to time as supremacy in the legislature has passed from one political party to the other. For this condition of affairs the only remedy is by a return to constitutional methods.”
It is said in Cooley Const. Lim., 87, note, in criticising the action of certain courts in declaring a statute to be constitutional which was not: “But it would have been interesting and useful if either of these learned courts had enumerated the evils that must be placed in the opposite scale when the question is whether a constitutional rule shall be disregarded; not the least of which is, tbe encouragement of a disposition on the part of legislative bodies to set aside constitutional restrictions, in the belief that, if the unconstitutional law can once be put in force, and large interests enlisted under it, the courts will not venture to declare it void, but will submit to the usurpation, no matter how gross and daring. We agree with the Supreme Court of Indiana, that, in construing constitutions, courts have nothing to do with the argument of ab inconvenienti, and should not ‘bend the Constitution to suit the law of the hour.’ Greencastle Tp. v. *98Black, 5 Ind. 557, 565; and with Bronson, Ch. J., in what, he says in Oakley v. Aspinwall, supra.”
It is now more than five months until the next general election, and ample time remains for the proper authorities to take such steps as may be deemed necessary to protect the rights of the people, and see “that the laws are faithfully executed.”
If, hoAvever, the election were so near at hand that such steps could not reasonably be taken, the court might, perhaps, properly withhold its decision until after the election ivas held; but in no event would the court be justified in adjudging that an unconstitutional apportionment act was valid, or, in refusing to pass upon the question of its validity; to do so is to disregard the provisions of the constitution, which every officer is sworn to support.
It is proper to say that the quotation made in the prevailing opinion, from the separate opinion of Elliott, J., in Parker v. State, supra, is from that part of the opinion in which he expresses his dissent from the action of the majority in declaring the apportionment act of 1891 unconstitutional, and that the language quoted gives one of the reasons he urged why the court should not pass upon the question.
The majority of the court, however, passed upon the question, and held said act unconstitutional.
The judgment should be affirmed.